arrow left
arrow right
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
Preview

                                DAVID M. GLASPY, Esq. SBN 95332
BRIAN S. O'MALLEY, Esq. SBN 111921

MCGIVNEY, KLUGER & GLASPY
One Walnut Creek Center ELECTRONICALLY
100 Pringle Avenue, Suite 750 FILED
Walnut Creek, CA 94596 Superior Court of California,
Telephone: (925) 947-1300 County of San Francisco|
Facsimile: (925) 947-1594 FEB 09 2011
Attorney for Defendant Clerk of the Court
KENTILE FLOORS, INC. Oy CHRISTE AR puty Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, ) Case No. CGC-10-275731
)
Plaintiff, ) Assigned for all purposes to
) The Honorable Harold E. Kahn,
vs. ) Department 220
2
C.C. MOORE & CO. ENGINEERS, etal. 1) ANSWER TO COMPLAINT
Defendants. )
)
)

—_——______)

Defendant, KENTILE FLOORS, INC., responds to plaintiffs(s') Unverified
Complaint as follows:

Answering the allegations of plaintiff's(s') Complaint on file hercin, this answering
defendant denies each and every, all and singular, generally and specifically, the allegations
contained in said complaint, and each and every part thereof, and in this connection denies
that plaintiff(s) has/have been injured or damaged in any sum or sums, or at all, by reason of
any carelessness, negligence, act or omissions of this defendant.

Mt
Mt

ole

Answer to ComplaintAFFIRMATIVE DEFENSES

1. Defendant alleges that plaintiff(s) voluntarily and knowingly entered into and
engaged in conduct alleged in said Complaint, and voluntarily and knowingly assumed all
risks incident to said Complaint at the time and place mentioned in said Complaint for
damages.

2. Defendant alleges that said Complaint fails to set forth facts sufficient to state
a cause of action against this answering defendant.

3. Defendant alleges that said Complaint fails to state a cause of action for
punitive damages against this answering defendant.

4. Defendant alleges that plaintiff(s) was/were careless and negligent in and
about the matters alleged in the Complaint, and that said carelessness and negligence on said
plaintiff's(s') own part proximately contributed to the happening of the incident and to the
loss and damages complained of, if any there were.

5. Defendant alleges that if negligence is found on the part of this defendant,
which said negligence is expressly denied, that said negligence should be compared with the
negligence of the plaintiff(s), and all other parties herein, and apportioned accordingly.

6. Defendant alleges that the plaintiff's(s') Complaint is barred by the provisions
of the Code of Civil Procedure Section 340, et_seq., in particular, Sections 340 (3) and
340.2.

7. Defendant alleges that at all times referred to in plaintiff's(s') Complaint, the
plaintiff(s) was/were guilty of abuse and misuse of the product(s) and compound(s) referred
to in said Complaint and the plaintiff's(s') injuries and damages, if any there were, were a

direct and proximate result of said abuse and misuse by plaintiff(s).

Answer to Complaint8. By way of pleading laches, defendant alleges that plaintifi(s) has/have
delayed an unreasonable period of time in bringing this action as alleged in said Complaint;
said unreasonable delay is prejudicial to this answering defendant in that the period of time
involved places an unreasonable burden on defendant in attempting to obtain evidence to
defend said allegations in plaintiff's(s!) Complaint; said unreasonable delay upon the part of
plaintiff(s) unreasonably prejudiced this answering defendant and plaintiff(s) is/are thereby
guilty of laches and should be barred from any recovery as to this answering defendant.

9. In further answers to the allegations of plaintiff's(s') Complaint, this
answering defendant denies that plaintiff(s) is/are entitled to punitive damages in any sum,
or otherwise, or at all, by reason of any carelessness, negligence, act or omission of this
defendant.

10. As an Affirmative Defense to the Fifth Cause of Action to the Complaint,
this defendant alleges that said cause of action fails to set forth facts sufficient to state a
cause of action (upon which to base a claim for punitive damages) against this answering
defendant.

11. Defendant alleges that at the time the alleged incident occurred, plaintiff was
employed and was acting within the course and scope of his/her employment. It is alleged
by this defendant that plaintiff's(s') employers, other than this answering defendant, and

their agents, servants, and employees were themselves negligent and careless in and about

the matters set forth in the Complaint, in that at the time and place described therein said
employer(s), other than this answering defendant, failed to use due care and caution for the
protection of plaintiff(s); that said acts of negligence and carelessness on the part of said
employer(s), other than this answering defendant, proximately caused the injury to said

plaintiffs), and any and all liability and/or expenditure under the workmen's compensation

Answer to Complaintlaws of the State of California incurred by said employer(s) on account of said injuries to
employee.

12. Defendant alleges that the Complaint, and each cause of action therein, is
barred as against this answering defendant by the provisions of California Labor Code

Sections 3602, et seq.

13. __ Plaintiff's(s') Complaint is barred by statute of limitations pursuant to Title 45

U.S.C. Section 56,
14. Defendant alleges that it acted solely under the
direction and contro] of the United States of America pursuant to government specifications;

that this defendant acted at all times in conformity with one or more government

specifications and properly performed all work thereunder according to such specifications;
that the United States of America is immune as expressed in Feres v. United States, 340
US. 135, 71 8.CT.153, 95 L.ED. 152 (1950); and that this defendant is therefore immune
under suit under the so-called government contract doctrine as set forth in Yearsley v. W.A.
Ross Construction Company, 309 U.S. 18, 60 S.CT. 89, 84 L.Ed 454 (1940), and In Re

Agent Orange Product Liability Litigation, 506 F.Supp. 762 (D.C.N.Y. 1980).

15. Defendant alleges that plaintiff's(s') Complaint fails to state facts sufficient to

constitute a cause of action under Sindell_y. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d

924, 163 Cal.Rptr., 132 (1980), or any other so-called rule of "enterprise liability.”
16. That the plaintiffs(s’) failed to mitigate their damages, if any there by.
PRAYER
WHEREFORE, defendant prays that plaintiff(s) take nothing by way of his/her/their
Complaint; that defendant be awarded its costs of suit incurred herein; together with such

other and further relief as the Court may deem just and proper.

4.

Answer to ComplaintDated: February / ,2011

MCGIVNEY, KLUGER & GLASPY

-O’ Malley, Esq.
ey for Defendant
KENTILE FLOORS, INC.

Answer to Complaint\o

PROOF OF SERVICE

I declare that:

Tam employed in the County of Contra Costa, State of California. I am over the age
of 18 years and not a party to the within action: My. business address is One Walnut Creek
Center, 100 Pringle Avenue, Suite 750, Walnut Creek, California 94596.

On the date listed below, I served the following document(s):

ANSWER TO COMPLAINT

By transmitting a true copy to: ~ SEE ATTACHED LIST ~

Via the following method:
x (By LexisNexis File & Serve): By personally transmitting a true
copy thereof via electronic mail to LexisNexis for e-mailing to all
parties in this action.

(By Mail): This document, which is in an envelope addressed as
stated above, sealed with postage thereon fully prepaid and will be
deposited with the United States Postal Service this date in the
ordinary course of business.

(By Fax): By placing a true and correct into the facsimile machine
located at 100 Pringle Avenue, Walnut Creek, California on this date
and transmitting to all parties via facsimile transmittal.

(By Personal Service): By personally delivering a true copy thereof to
the office of the addresses attached by courier service.

Ideclare under penalty of perjury that the foregoing is true and correct. Executed on -

M.C.C) Le
7

this February , 2011 at Walnut Creek, California.

-l-
Proof of Servicewv

6
|
8
9

b

Attorneys for Plaintiff

Alan Brayton

David Donadio
BRAYTON PURCELL
222 Rush Landing Road
Novato, CA 94945
(415) 898-1555

SERVICE LIST

2-
Proof of Service